legal risks of social media

Look before you Tweet

Managing the Legal Risks of Social Media and Social Networking

for Business

23 March 2012

Roger Bull

Andrew Tibber

Look Before you Tweet: Managing the Legal Risks

of Social Media and Social Networking for Business

Introduction

� Commercial Law Issues – Andrew Tibber

� Employment Law Issues – Roger Bull



Commercial law issues

� Advertising Laws and Regulation

� Anti-Social Networking

� Copyright



Advertising Laws and Regulation

� Advertising Standards Authority (ASA) - UK’s independent regulator

� CAP Code on Non-Broadcast Advertising, Sales Promotion and Direct Marketing

� Marketing communications should be “legal, decent, honest and truthful”

� “Non-Broadcast” extends to advertising and other marketing communications:

- on company website or other “non-paid for space online” under company control

- directly connected with the supply or transfer of goods, services, opportunities or gifts

- in user-generated content if “adopted and incorporated” within own marketing communications




� Marketing communications should be “obviously identifiable as such” (r 2.1)




� Offences:

- Consumer Protection from Unfair Trading Regulations 2008

- Business Protection from Misleading Marketing Regulations 2008

� Enforced by the Office of Fair Trading

� Handpicked Media (2010) – commercial engagement of bloggers

� OFT identified infringements under CPUTR 2008:

- failure to disclose material information that the promotion had been paid for (reg 6)

- use of editorial content to promote a product without making clear that Handpicked Media had paid for the promotion (Sch 1, para 11)



Anti-social networking

� Monitor, evaluate, identify and remedy

� Is it libel or “saloon bar moanings”? Substantial harm?

� Could action be counter-productive?

� Can you identify the author?

� Self-help: Does the host have a reporting procedure?

� Is there a threat of violence?

� Consider your own liability for hosting defamatory content

� Remedy – be careful what you wish for



Copyright

� Copyright subsists in original literary, dramatic, musical or artistic works (CDPA 1988, s 1)

� Newspaper headlines/extracts are capable of being protected by copyright

� Copyright in a work is infringed by a person who copies the whole or a substantial part of the work without the licence of the copyright owner (s 16)

� Fair dealing for the purpose of criticism, review and news reporting is permitted provided accompanied by sufficient acknowledgement (s 30)



Copyright

� Re-tweets

� Publication of links

� Deep-linking

� Pinterest

� Ownership of UGC



Employment law issues

- What is social media?

- Employment law risks

- How to manage the risk



Introduction

� What is social media?



Introduction

� Why are there issues for business?

- conflict between business opportunities and

risks

- positive use of social media

- legal risks of social media

- technology ahead of the law

- blurring the line between the personal and the

professional



The internet and social media

� One in three on the planet use the internet

� Over two billion people

� Over 800 million Facebook users

� 1 in every 6 Internet pages viewed in the UK is a Facebook page

� 200 million Twitter users

� Linkedin reached 120 million users in 2011



Social Media – Employment Law Risks

Employers’ Use

� Pre-employment vetting

- Data Protection Act/Human Rights

- Discrimination

� Verifying absence

- Data Protection

- Trust and confidence



Social Media – Employment Law Risks

Employees’ (mis)use

- Vicarious liability

- Misconduct outside of workplace

- Cyber bullying and harassment

- Damage to brand/reputation

- Cyber-slacking

- Breach of confidentiality

- Breach of restrictive covenants

- Unfair dismissal



Social media policy - ensuring

compliance� Have a stand-alone policy

� Inter-relation with other policies:

- IT

- confidentiality

- code of conduct

- anti-harassment/bullying

- equal opportunities

- data protection

- disciplinary

- grievance

- recruitment

� Clear consequences for breach (Preece v JD Wetherspoons)



Social media policy – Why bother?

� To set out your expectations

� To provide guidelines on acceptable use

� To confirm who is covered

- employees and contractors

- in and out of work

� To ensure compliance with DPA

� To support remedial action

� To protect the company



Social media policy - enforcement

� Policy is only as good as enforcement

- ensure widely available and understood

- monitor

- take action to enforce

- be consistent

� Introduce training

� Ongoing review



Social Media: Conclusion

� Significant business opportunities

� Significant business risks

� Governance role to ensure risks are managed

� The Solution: A Social Media Policy



This presentation gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care

over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content.

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